Tamil Nadu, which saw its 16th assembly formally dissolved on Wednesday, may have just strayed into one of the gaps, grey zones and silences that dot the pages of the Constitution of India, the world’s most voluminous written constitution.In the 234-member assembly, Tamilaga Vettri Kazhagam (TVK) of Vijay has secured only 107 seats as Vijay has to resign from one of his two constituencies – Perambur and Tiruchi East. It needs 10 more seats for simple majority.Despite falling short of the halfway mark even with support of five Congress MLAs-elect, Vijay met Governor V R Arlekar and formally staked his claim to form the govt. There was nothing to suspect anything amiss, as both the governor and the chief minister-claimant flashed broad smiles for cameras. And, the Jawaharlal Nehru Stadium in Central Chennai was being decked up for Vijay’s coronation on Thursday.Then, something went wrong. Vijay did not get the gubernatorial invite to form the govt, and the swearing-in ceremony itself has now been deferred.The governor’s secretariat has not released any statement as to the fate of Vijay’s claim or the governor’s decision. Obviously, the governor was not ‘satisfied’ with the testimonials accompanying Vijay’s claim. Suddenly, the heaviness of a ‘hung assembly’ scenario dawned on Tamil Nadu.What stopped the governor from accepting the letters, administering oath to Vijay and giving him time to prove his majority on the floor of the assembly? After all, DMK and AIADMK alliances are far from the majority mark. What does the Constitution say about a time frame, if any, or any code to be followed before a leader staking claim to form govt is invited or spurned?There is no answer in the Constitution. It is this constitutional silence which gave rise to different responses by different governors in ‘hung assembly’ situations. The operative word in Article 164 of the Constitution is ‘discretion’. The vagueness gives governors unfettered and uncodified powers to respond to a given situation. The least controversial option invoked by governors in the past was insisting on a signed list of MLAs supporting the party or person staking claim to form the govt. If there were doubts about a possibility of coercion or post-signature withdrawals, governors have insisted on in-person appearance of the MLAs concerned to confirm their support. Parading of MLAs before the governor for ‘physical verification’, however, had always been frowned upon as being crass, but it did ensure a certain degree of transparency.But such insistence is justified only in cases where the apprehensions of the governors are reasonable and there is a real possibility of forgery, coercion or horse-trading. None of these scenarios has surfaced in Tamil Nadu, so far.Courts too had been called in to decide such controversies.In the Pratap Singh Rane v. Governor of Goa (1998) case, Supreme Court held that the Governor must follow constitutional conventions and invite the single largest party or pre-election coalition to prove its majority first. The governor cannot act arbitrarily and must base decisions on objective criteria, it said.But, in Chandrakant Kavlekar v. Union of India, though Congress was the single largest party, the Goa governor asked the BJP-led coalition to form the govt in the 2017. The Supreme Court upheld the decision, saying the governor has the ‘discretion’ to invite a coalition, if it appears more stable, even if the single largest party stakes a claim. The court talked of ‘demonstrable support’, and said such a support should be examined on the floor of the assembly.If the Constitution is silent, how and when did the convention of inviting the single largest party come into existence and become a practice?It was the ingenuity of President K R Narayanan, which threw some light on this grey stretch of the Constitution. In 1998, Narayanan invited A B Vajpayee to form a BJP govt at the Centre because it was the single largest party with 182 seats. A year later, after Jayalalithaa withdrew her support, Narayanan dissolved the House because he was ‘satisfied’ that no stable govt was possible. He did not leave it at that. He wrote a communique which would serve as a guiding lamp for future scenarios. He wrote:“When no party or pre-election alliance of parties is in a clear majority, the Head of State has in India or elsewhere given the first opportunity to the leader of the party or combination of parties that have won the largest number of seats subject to the Prime Minister so appointed obtaining majority support on the floor of the House within a stipulated time. This procedure is not, however, an all-time formula because situations can arise where members of Parliament not belonging to the single largest party or combination can, as a collective entity, outnumber the single largest claimant. The President’s choice of Prime Minister is pivoted on the ‘would be’ Prime Minister’s claim of commanding majority support.”It is time to define the ‘discretion’ available to the governors. The majority-proving exercise should happen on the floor of the Assembly, not in the Lok Bhavan.
